A judicial reform will happen in Israel whether we like it or not - opinion

The movement for judicial reform began on January 4, 2023, more than 20 months ago, and a full nine months before the start of the war. Now, despite the war, it has been proposed again, and it is again inspiring opposition.

Perhaps the time has arrived for us to face some hard truths about the reform. There are three such truths. First, the current situation is not viable. It cannot continue, and therefore it will not continue.

 If the political Left were able, it would freeze the status quo, but that won’t happen. 

Second, the dream of the political Right to completely eliminate court review of political decisions is unrealizable, which is good, because some kind of judicial review is an essential safeguard against a descent into autocracy. 

Third, as a result of the first two truths, a new reality will be created that will not be totally satisfactory to either the Left or the Right. 

This may take five weeks or five months or five years, but eventually, after much shouting and many demonstrations, there will be a new legal regime in Israel.

The problem that makes the current situation unviable is the blurring of distinctions among the various branches of government. 

What are called “checks and balances” are essential to the preservation of democracy, but there can be no checks and balances when one of the three branches of government, here the judicial branch, takes on functions of the other two branches.

How has the judicial branch taken these functions? First, the Supreme Court ignores the concept of “justiciability,” which states that some decisions are not appropriate for a court, and should be made only by the legislative or executive branches. 

Why, for example, can our Supreme Court decide that prisons run by private corporations would violate the human dignity of prisoners, and hence are illegal? 

In the US, 158 private prisons house 8% of all prisoners in the US – how does our court feel that it can decide this question?

The court also applies a doctrine it calls “reasonableness.” If the judges feel a law is “unreasonable,” or an executive action is “unreasonable,” then the judges substitute their values to create new policy. 

This is a blurring of all branches of government.

Finally, the court converted the attorney-general, who is clearly a member of the executive branch, into a mini-court, by saying that she decides what the law is, and the government must obey. The courts –  not the AG – were created to interpret the law. 

Similarly, the chief counsel in each ministry, who should be an adviser to the minister of that ministry, is instead the overseer who decides what the minister may or may not do. This converts an executive officer into a legislator.

The result of all this is chaos, a government in which no one is certain who is responsible for which decisions, or which branch trumps the other in the event of conflicts, which are becoming increasingly frequent and bitter. This is an unstable situation that cannot continue over the long run.

ACCORDING TO the political Right, Israel must stop this chaos by tying the hands of the court, and preventing the Court from considering any decisions that the Right feels are “political.” 

Unfortunately, however, such a result would ignore the particular structure and function of Israel’s government.Unlike some countries, we have a unicameral legislature; there is no House checking a Senate, or vice versa. 

Unlike some countries, the legislature, here the Knesset, has no right of veto power over the executive, in Israel the prime minister. Unlike some countries, Israel has no electoral districts, rather every member of the legislature runs as a name on a “party list,” and every member of Knesset is beholden to a party leader.

The result of all this is that the legislative branch is never independent of the executive, and is, in fact, subservient to the executive branch. 

To oust judicial review completely, would therefore create a monopoly of political power in the executive branch, which we must not do. That is simply too dangerous in a democracy.

What then is the solution?

No one knows precisely, but we will almost certainly see certain elements in one form or another:

1) Judicial cases will be classified as “constitutional” or not. The classification will probably be done by agreement of the three branches, in some way.

2) Constitutional cases will require an expanded hearing by the Court, perhaps all 15 judges.

3) Any decision to change the status quo, that is, in favor of a petitioner or appellant, will require a super-majority of judges, instead of a simple majority.

4) A constitutional decision will be subject to review by the legislature, but overturning the court decision will either require a super-majority (perhaps 65 or even 70 votes), or will require some support from both the government and the opposition.

5) A judicial decision that is not overturned by the legislature will, if possible, take effect only in the next government.

6) It is impossible that the AG, an executive official, function as the judicial representative of the Court. If the Court needs help, then we must create a new “constitutional court” to deal specifically with constitutional issues, perhaps with appellate review by the Supreme Court.

7) It is impossible that the chief counsel in every ministry acts as an overseer. The ministers need legal help in their work, not adversaries. The chief counsel should be appointed by and report to the minister. 

However, on issues that the chief counsel considers legally unclear, he or she should report that issue to the AG, so that there is a kind of review.

There are other issues in addition to those mentioned here, such as the selection of judges and justices, the selection and role of the president of the Supreme Court, the doctrine of “standing” of a party to sue, the doctrine of “ripeness” of an issue for immediate review, and others. But these issues, no matter how important, do not create confusion among the three branches of government.

There will be judicial reform. It will likely require several years of bitter conflict before a resolution is reached. The result will be a compromise that is unsatisfactory in some degree to everyone, but nevertheless, that will be the new status quo, and we will go on from there.

The writer is a commercial and patent lawyer in Israel, the author of a book on lawfare, and a frequent commentator on social affairs.